Wednesday, October 31, 2001
C.A. Strikes Down Ban on False Complaints Against Officers
By KENNETH OFGANG, Staff Writer/Appellate Courts
A statute making it a crime to falsely accuse a police officer of misconduct violates the First Amendment, this district’s Court of Appeal ruled yesterday.
“It is not a crime to knowingly make such an accusation against a firefighter, a paramedic, a teacher, an elected official, or anyone else,” Presiding Justice Arthur L. Gilbert wrote for Div. Six. “By protecting only peace officers, [Penal Code] section 148.6 selectively prohibits expression because of its content.”
The panel overturned the convictions of Shaun Stanistreet and Barbara Atkinson on a misdemeanor charge of falsely accusing an Oxnard police officer of engaging in lewd conduct at a Police Activities League event. A Ventura Superior Court jury found the defendants guilty on after Judge John Hunter denied their motion to dismiss.
They were also convicted of filing a false police report. A third charge, destroying or concealing evidence, was dismissed after jurors deadlocked.
A divided Ventura Superior Court Appellate Division affirmed, but the Court of Appeal ordered the case transferred.
The Court of Appeal panel threw out the false-report conviction, holding that the statute under which the pair was charged, Sec. 148.5, doesn’t apply to complaints of police misconduct. Gilbert cited Pena v. Municipal Court (1979) 96 Cal.App.3d 77, to that effect.
The justices also agreed with the defendants that Sec. 148.6 is unconstitutional.
Gilbert said the law was a content-based regulation of speech, citing R.A.V. v. City of St. Paul, Minn. (1992) 505 U.S. 377. The high court held in that case that an ordinance prohibiting cross-burning was unconstitutional, Gilbert explained, “because it punished the use of only those fighting words that insulted or provoked violence on the basis of disfavored categories: race, color, creed, religion or gender,” while other types of fighting words were unregulated.
The presiding justice acknowledged that false complaints may inhibit effective law enforcement, and that studies suggest that a large majority of citizen complaints against officers are unfounded. But that problem cannot be cured, he said, by means of a law that “might well stifle the registering of legitimate complaints” by the rest of the population.
Ventura County Senior Deputy District Attorney Michael D. Schwartz, who argued in favor of the law, said his office would seek review in the state Supreme Court.
Sec. 148.6, Schwartz explained, was a legislative response to Pena. He acknowledged that Sec. 148.6 purports to apply to all claims of misconduct, not merely those in which the officer is accused of a crime, but said the court should have limited the scope of the statute instead of throwing it out completely.
“Apparently it’s a crime to make a false report of a crime about anyone other than a peace officer,’ he commented.
Dan Tokaji, who represented the ACLU Foundation of Southern California as amicus in support of the defendants, called the decision “wonderful.”
“Citizens have a right to complain about police misconduct without being subject to the threat of prosecution. This ruling will enable citizens to speak freely when they witness police abuse.”
The ACLU is also challenging a companion statute that allows a peace officer to sue for damages if falsely accused of misconduct. The constitutionality of Civil Code Sec. 47.5 is presently before the Ninth U.S. Circuit Court of Appeals.
The case ruled on yesterday is People v. Stanistreet, B143501.
Copyright 2001, Metropolitan News Company